Corona Impeachment Trial

Winner’s curse: How the opposition intimidated Team PNoy to take the low road to win in 2013 while leaving daang matuwid with no clear agenda or heir-apparent


In the Japanese martial art of Jujitsu one gains victory not by superior strength, but by using the force of one’s opponent against him. This is what the leader of the “friendly” opposition Vice President Jojo Binay did to the administration in the 2013 senatorial elections.

Having defeated President Aquino’s heir apparent Secretary Mar Roxas in the 2010 vice presidential derby, Binay’s unrivalled popularity while in office and his links to two of the most revered names in Philippine politics (Senate President Juan Ponce Enrile and ex-president Joseph Estrada) made “winnability” foremost in Team PNoy’s mind in considering candidates for its 2013 senate slate.

Having experienced the “tyranny of numbers” in the lead up to the impeachment trial of Supreme Court Chief Justice Renato Corona and in the subsequent push to have a number of its reform measures passed, the administration was not going to risk losing a majority of senate seats this time around. This caused the administration to take a “win at all costs” approach.

Its first move was to mend fences with its former rivals in the 2010 election. The entry of the Nacionalista Party’s standard bearers into the tent of Team PNoy spelled an about face for both parties. Senator Alan Peter Cayetano had started the TOPAK meme which maligned the president’s mental capacities. Senator Loren Legarda had called on him to undergo a psychiatric evaluation during the campaign. All that was swept under the rug as far as the administration was concerned.

After framing the contest between Messrs Aquino and Villar back in 2010 as one of “light v darkness”, the Villar’s were all of a sudden admitted among the “chosen ones” who would travel down the “Righteous Path” alongside the president. Not to worry, the administration said, since such a coalition was based on platforms, not personalities. Except that they avoided at every turn to define what that platform was.

When asked to identify the top 5 legislative proposals Team PNoy would push for if elected, its spokesman, Rep Miro Quimbo could only identify 4. “Let me get back to you on that” was his candid response. Unfortunately even the priorities he outlined didn’t figure in any formal policy document or in most of the endorsed candidates’ platforms.

When asked why there was no shared policy platform across Team PNoy, the undersecretary for strategy and communications, Manolo Quezon replied that midterms weren’t about policies but a referendum on the president. You either believe in him and his “chosen ones” or you don’t. So there you have it. The election was framed as a clash of personalities and their proxies, not as a contest of ideas, policies and visions for the country. Here’s what he said…

Consequently, the voters simply did what they have always done when faced with no real alternatives but the same old dynasties and incumbents: they went with those that connected with them on a deep emotional level, those with whom they felt a sense of shared destiny.

Due to the economic make-up of our electorate, that meant electing Nancy Binay even if she had no prior experience working in an official capacity in government. It also meant catapulting Grace Poe to pole position based on the memory of her deceased father and the playful use of her surname as an expression of respect.

Both these candidates scored high on our “trapo scale” dubbed the “pander-o-meter” based on an analysis of their personal platforms. Of course their policies were never scrutinised by the media. Neither did the intelligentsia perform its role in critically assessing the promises of each candidate (the absence of party-wide platforms made this task a lot more difficult than it should have been).

Health care reform, a key plank in Ms Binay’s platform was not given the kind of treatment it needed. She was never challenged on the feasibility of her proposals to provide free nutrition and medicine particularly to nursing mothers. In the case of Grace Poe, nobody noticed that her campaign was anchored on a coulda shoulda woulda basis committing her to nothing specific and nothing firm.

The candidates were allowed to promise the sun, moon and stars all the while pandering to the emotional pleasure zones of the electorate without the voice of reason being given an honest hearing. Social media was co-opted to suit the candidates’ purposes. There was no one calling them out on the false hopes and expectations that they were building.

Finally, in assessing the aftermath of Election 2013, what we will find is that although Team PNoy garnered a clear majority of seats that were up for grabs, it comes out the weaker party.

Sure, it now can boast of having a majority in both chambers of congress, but the political calculus facing its adherents will be daunting. Will they really pursue the tough and unpopular reforms that are needed to bring the country forward, especially now that the electoral bankability of the BInay dynasty remains utterly unassailable?

Secondly, the president does not have a clear, viable heir-apparent to challenge the Jojo Binay-Jinggoy Estrada machinery and name recall in 2016. Secretary Mar Roxas has not accepted his party’s draft to run perhaps due to his failure to define a narrative for his candidacy.

Only one of the Liberal Party’s three senatorial candidates is likely to win in this election, in large part due to the fact that he shares the same name as the president. Bam Aquino will be too young to contest the presidential elections in 2016 being a year shy of the minimum age requirement, repeating the fate of his late-uncle.

So that leaves the administration with a mere three years to cement its legacy before handing over the reins to its successor who is likely to come from the opposition. For failing to define its agenda and properly vet its allies prior to the elections, the administration now suffers the problem of having no clear mandate to implement whatever reforms it outlines afterwards.

The same thing happened following the 1986 people power uprising. Rather than develop a new breed of politicos based on principles and a common reform agenda, the revolutionary government of Cory Aquino accommodated and resuscitated the clans who ruled the country in the pre-Martial Law era allowing the children of its revolution to die in the ditches defending their cause.

Joseph Estrada once said that her government’s biggest mistake was letting guys like him back in (clever guy he truly is!). Only those like Jejomar Binay who were willing to “play by the rules” of the jungle survived.

Instead of taking the hard, difficult path of building a constituency for reform through principled, policy-driven politics and developing a new breed of politicians from inside its base, the second Aquino administration opted to go down the quick and easy path to success, just like the first.

For those that thought 2010 marked the beginning of an era of new politics, think again. The years 2010-16 might simply be an interlude, a case of trapo interrupted, where the country enjoyed a momentary respite from the worst forms of populist, predatory politics at the top, before old habits kicked in once again.

Image: courtesy of Rappler.com

Back to Front

With revelations of bank transactions involving staggering sums attached to a certain Renato Corona unveiled at the impeachment trial of the Chief Justice who bears the same name, some commentators have come to the conclusion that the Philippines has turned a corner in its path towards good governance.

There was that piece by EdselTupaz (not to be confused with Rep Niel Tupas, Jr.) a private prosecutor for the House panel and Daniel Wagner a country risk consultant, ‘The Fall of the Mighty and the Rise of Justice in the Philippines‘, which waxes poetic and sounds a bit triumphalist. It claims that the Supreme Court ruling on Hacienda Luisita and the proceedings at the impeachment court have revamped the image of the country before the investment community, which is why its sovereign ratings have been upgraded.

“The proof will be in the pudding however;” Tupaz and Wagner warned, “for the justice system to truly be able to say that it has turned a corner, Mr. Corona and Ms. Arroyo need to be sent to prison, and stay there, rather than being able to buy their way out.” And therein lies the problem, since the way the trial has unravelled shows not how the system is finally working, but rather that it is operating back to front. I am referring to the way in which evidence has been gathered which may weaken the case against the accused if and when the proceedings shift from the impeachment court to the anti-graft one.

The most damning pieces of evidence presented in the trial so far have been those relating to peso and dollar accounts that the prosecution claims were owned by the Chief Justice but not included in his statements of net worth. Documentary proof of the accounts was first leaked to the prosecution team and subsequently found to have been obtained unlawfully. Despite this, however, the court ruled to admit them as evidence claiming that its procedures were sui generis or one of a kind.

When advised of this ruling, the bank in question sought and gained an injunction from the Supreme Court to prevent the disclosure of the dollar accounts which under Presidential Decree 1035 could only be examined with the written consent of the account holder. The Ombudsman seemed to have found a way around this by going to the Anti-Money Laundering Council (AMLC) which was set up to monitor the flows of large or suspicious amounts in the banking system.

Having the constitutional mandate to investigate all public officials, including impeachable ones, and armed with the power to request help from other government agencies in this regard, she had secured a dossier from the AMLC detailing transactions involving not only the bank in question, but others as well, which formed part of her testimony at the impeachment court. While the defence had sought to grill her on the means by which she had obtained them (had she gained a court order for instance), the Senate President ruled that such questioning was immaterial and that the regularity of official actions was presumed.

No one among the senator-judges objected to this ruling at the time, since the testimony of the Ombudsman had been highly anticipated. This anticipation had been built up to the point that if the evidence had been suppressed, it would have been likened to the case of the second envelope containing the infamous Jose Velarde account during the trial of President Joseph Estrada which led to the second People Power revolt that toppled him.

It dawned upon some judges the day after they had been treated to a visual presentation of the forensic analysis conducted by the Ombudsman with help from the Commission on Audit the ease with which such a dossier could be compiled. In the age of digital computing technology, the beast that they created, namely the AMLC could potentially devour them and all political foes of any sitting president. ‘Morales’ Powers Feared‘ one headline read referring to the Office of the Ombudsman.

In a piece entitled He Who is Without a False SALN, Let Him Cast the First Vote, I tried to make the point that given how prevalent the practice of doctoring one’s statement of net worth is, that if the same standard of probity were enforced across the board, perhaps no individual in government would come out squeaky clean. Indeed whenever the letter of the law is applied to any single individual, the reaction often is “why me?” which inevitably leads to allegations of conspiracy on the part of the accuser (implying that the law is not being applied equally to all).

Some senator-judges not formally aligned with the Palace in seeking to adjudicate the case fairly probed the Ombudsman as to whether the assumption the court had made regarding the regularity of official functions was indeed justified. ‘Morales’ Acts Illegal?‘ was the rhetorical device posted by one news daily. ‘Blitzkrieg’ was how another labelled the situation.

The Ombudsman admitted at the trial that she did not deem it necessary to gain a court order before requesting the information from the AMLC and presenting it before the public. How could she, if in this case, the only valid court was the Senate? Such a pre-requisite would have been circuitous if not back to front in the investigative process (meaning you normally gather evidence first before charging someone), but that is what the law seems to prescribe as a safeguard to protect the defendant’s rights.

As I have said previously, the only way to address the issue would be to relax our bank secrecy and anti-wiretapping laws and grant the Ombudsman powers to inspect bank accounts and conduct audio surveillance. Without such changes, the office might continue to suffer the dismal conviction rate that it has. But to get the support of Congress for such measures will be difficult since as we have seen  it will be loath to adopt them because of their potentially adverse impact on its political independence.

Perhaps all that is needed to get the proposals enacted would be to draw a line in the sand as Jesus did in the gospel of John (which in this case would mean preventing the Ombudsman from applying the new rules retroactively to acts committed prior to the signing of such legislation, something that Indonesia did with their Corruption Eradication Commission) and charge our public officials as he did the adulteress, to “go and sin no more”.

Pseudo-trial

What happens when social media takesover the justice system?

As per the Julian Assange case in Britain where the WikiLeaks founder may find out about his fate through the social networking site, could the same thing be envisaged here? Could the use of social media be the same as serving notice to the parties to a trial?

Imagine what would have happened in the case involving Gloria Arroyo’s hold departure order if that had happened? The government’s excuse that it had not received a copy of the decision would not have been available if the decision had been uploaded immediately and tweeted to the court’s “followers” within minutes.

The trial of Chief Justice Corona too could be determined by the media (including Facebook and Twitter). Once cannot discount the possibility of an Arab Spring-like uprising taking place in the aftermath of the trial. Since the prosecution seems to be facing strong headwinds, the conduct of a separate trial by citizen’s groups and netizens in the public arena including the blogosphere seems to be suffering no setbacks.

Forget about establishing the “facts” of the case in the formal court, this is all about shaping the minds of the jurors in the court of public opinion. Call it forum shopping if you like, but parties to this impeachment trial do not feel compelled to abide by the “rules of the game”… so much for strengthening the “rule of law” and “institution-building”.

All this wouldn’t sit too well with senator-judges who are hoping to make an impartial decision based on evidence. What we are witnessing is the mirroring of the justice system in the trial by the senate, where poor evidence gathering, poor homework lays a poor foundation for the prosecution, which inevitably leads to a poor conviction rate.

Except that in this case it is a trial by jury, and the jurors, unlike a proper court, are not restricted from reading (and discussing) the news related to their case. As such, their decision will ultimately reflect the biases formed in the gallery. In a proper court, this would be grounds for a mistrial, but in this pseudo version of Law and Order, the rabble run the show.